Punjab-Haryana High Court
Krishan Kumar vs State Of Punjab on 11 October, 2010
Author: A.N.Jindal
Bench: A.N.Jindal
Criminal Appeal No.847-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.847-SB of 2001
Date of Decision 11.10.2010
Krishan Kumar ...... Appellant
VERSUS
State of Punjab ...... Respondent
CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr.Tribhuwan Singla, Advocate with Mr.O.P.Kamboj,
Advocate, for the appellant.
Mr.Amit Chaudhary, Asstt. Advocate General, Punjab,
for the respondent-State.
*****
A.N.JINDAL, J:
Accused Krishan Kumar, the then Incharge, R.I. Centre, Mohali District Ropar, was prosecuted for receiving illegal gratification to the tune of Rs.1,000/-, consequently, he was tried and vide judgment dated 18.07.2001, passed by Special Judge, Rupnagar, convicted and sentenced to undergo rigorous imprisonment for six months and fine of Rs.1,000/- under Section 7 of the Prevention of Corruption Act, 1988 (for brevity 'the Act') and rigorous imprisonment for one year and fine of Rs.1,000/- under Section 13(2) of the Act.
Manjit Singh, an employee of the R.I. Centre Mohali, District Ropar, was transferred from ITI Mohali to Amritsar and thereafter he was again transferred to ITI, Ropar. His pay was wrongly fixed and entered in the service book. He sought correction of the same for which he approached the accused. During transfer, his service book was misplaced but lateron he came to know that the same was lying in R.I.Centre, Mohali. On account of the bargain, arrived between Manjit Singh and the accused, the latter agreed to make the correction in the service book on payment of Rs.1,000/- as illegal gratification. Since the complainant was reluctant to Criminal Appeal No.847-SB of 2001 2 pay the said amount, he approached Amrik Singh, Deputy Superintendent of Police, Vigilance Department, Ropar, who after recording his statement, organized a raiding party; collecting a sum of Rs.1,000/- from Manjit Singh and after noting down the numbers of the currency notes of Rs.100/- each in denomination in the memo Ex.PW6/B, applied phenol-patheliene powder on the notes, completed other formalities and handed back the said currency notes to the complainant with a direction that he should give the same to the accused on demand. He also deputed Paramjit Singh as a shadow witness, who on transfer of money to the accused, was to signal the raiding party. Then DSP Amrik Singh recorded the statement Ex.PW6/A and made endorsement on the memo Ex.PW8/C, on the basis of which FIR Ex.PW8/B was registered. Manjit Singh and Paramjit Singh went to the office of accused whereas the remaining raiding party remained behind. After the accused received a sum of Rs.1,000/- from the complainant, Paramjit Singh gave a signal. At this DSP Amrik Singh alongwith other members of the raiding party including Raj Kumar, an independent witness, entered his office. DSP Amrik Singh asked the accused to raise his hands. Mewa Singh, Deput Director to the office of accused was also summoned and a glass of water was requisitioned in which the DSP Amrik Singh mixed the Sodium Carbonate but its colour did not change. Thereafter the fingers of both the hands of the accused were dipped, consequently, its colour turned pink. The said water was put into a nip which was duly sealed. On search of the pocket of the shirt, worn by the accused, a sum of Rs.500/- were recovered. The numbers of the said currency notes when tallied, were found to be the same as recorded in memo Ex.PW6/A. Despite the search of the remaining pockets, having been made, the remaining currency notes of Criminal Appeal No.847-SB of 2001 3 Rs.500/- were not recovered. Complainant told DSP Amrik Singh that some private person had come to the accused, who had a talk with him; took some money from the accused and fled away. On further personal search of the accused, one purse containing Rs.82/-, one ball pen, one identity card and one driving licence was recovered. DSP Amrik Singh also got washed the pocket of the shirt, worn by the accused. Consequently, the colour of the pocket was also turned pink. The water was put in a nip and duly sealed and was taken into possession vide memo Ex.PC. The shirt was also taken into possession vide memo Ex.PG and some record was also taken into possession vide memo Ex.PW2/C including service book of the complainant and attendance register of the staff. DSP Amrik Singh prepared the site plan Ex.PW8/E, recorded the statements of witnesses and on completion of investigation, challan against the accused was presented in the Court.
The accused was charged under Section 7 read with Section 13 (2) of the Act to which he pleaded not guilty and opted to contest.
In order to substantiate the charges, the prosecution examined Head Constable Harbhajan Singh (PW1), Constable Gurcharan Singh (PW2), Amrik Singh, Senior Assistant, Office of Director Technical Education, Industrial Institute, Punjab, Chandigarh (PW3), Bhupinder Puri (PW4), Mewa Singh (PW5), Manjit Singh (PW6), Paramjit Singh (PW7), DSP Amrik Singh, Investigating Officer (PW8) and Raj Kumar Kapoor, Assistant Project Officer, ADC Development Office, Ropar (PW9). After proving documents Ex.PA to Ex.PD, PW2/A to PW2/C, PW6/A to Ex.PW6/B, Ex.PW8/A to ExPW8/F, the prosecution closed its evidence.
In his statement under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his Criminal Appeal No.847-SB of 2001 4 false implication in the case. In defence, he examined Gurmail Singh (DW1), Bhupinder Pal (DW2) and Jagjit Singh, Fitter Instructor ITI, Ropar (DW3).
The trial ended in conviction.
Arguments heard. Record perused. Amongst other contentions, it was urged on behalf of the accused that DSP Amrik Singh did not offer himself to be searched by the accused before effecting the search upon him, therefore, the search was illegal. In this connection, he has placed reliance on the judgments Tikkam Das versus State 1973 CLR 299, Sushil Kumar versus State 1974 CLR 193 and State of Haryana versus Sudesh Kamal 1991 (2) RCR 641. It was further contended that the complainant in this case has not supported the prosecution version, therefore, the previous demand made by the accused in response to which he had gone to pay the bribe does not stand established. As per prosecution allegations, the amount of Rs.1,000/- was handed over to the accused, however, no such recovery was effected from him and DSP Amrik Singh appears to have recovered only Rs.500/-. Mewa Singh (PW5) as well as Raj Kumar Kapoor (PW9), independent witnesses, have also partially supported the prosecution case,thus, he has sought this Court to extend benefit of doubt to the accused. To the contrary, Mr.Amit Chaudhary, Asstt. Advocate General, Punjab, has fully supported the judgment while stating that Mewa Singh (PW5), Manjit Singh (PW6) as well as Raj Kumar Kapoor (PW9) have supported the case in all the material particulars. There is nothing to disbelieve their testimonies qua the demand and acceptance of illegal gratification. As regards the place of posting of the accused as well as complainant, same are not disputed. So far as the mistake in the service Criminal Appeal No.847-SB of 2001 5 book is concerned, complainant Manjit Singh has admitted in his statement. The relevant extract of which is as under:-
"I lost the service book. I searched the same but it could not be traced. But thereafter, some conductor of the bus gave the service book to the accused. The accused told me that his service book has been traced and he would charge Rs.1,000/- for making his service book upto date and also making necessary correction."
During his cross-examination, he has stated as under:-
"There was a mistake in the service book regarding fixation of my pay. Actually my pay was to be fixed Rs.2500/- but it was fixed Rs.1800/-."
As regards the previous demand, Manjit Singh while appearing as PW6 has specifically stated that he wanted to get the correction in the service book with regard to fixation of his pay and he approached the accused for this purpose. He met him 6-7 times, ultimately, bargain was settled at Rs.1,000/-. He has admitted during cross-examination that he was alone when the accused had demanded Rs.1,000/- from him. He has further stated that on the date of raid, he had handed over the currency notes of Rs.1,000/- on demand and he had put the same in his pocket. Paramjit Singh, clerk (PW7), shadow witness in the case, has also fully corroborated the prosecution version. Learned counsel for the accused has further contended that Manjit Singh (PW6) has supported the prosecution version while appearing at the time of examination-in-chief but refused to support the same on some aspects of the case during cross-examination. In this regard, it may be observed that Manjit Singh (PW6) has supported in material particulars of the case, however, when he denied some insignificant aspects of the case, he was declared hostile. In this regard, it is noticed that Criminal Appeal No.847-SB of 2001 6 this witness was recorded on two occasion, firstly on 26.05.2000, however, he was further cross-examined on 10.07.2000. He even denied his statement made in the Court in examination-in-chief. It appears that during the pause between examination-in-chief and cross-examination, he was won over by the accused. The witness was not a layman to forget what was stated by him before the police or in examination-in-chief. The intentional denial on some aspects from his earlier statement indicates perjury committed by him. The trial Court has rightly observed as under:-
"It appears that during the time of adjournment of the case, he was won over by the accused and for that reason, he was giving adverse statements and he had to be declared as hostile at the request of Addl. P.P. for the State. Since, he denied also the statement given by him in his examination-in-chief to some extent, its benefit cannot be given to the accused. Rather, this witness is required to be prosecuted for the offence of "Perjury" under Section 193 IPC read with Section 344 Cr.P.C."
It may be noticed that since this witness supported the prosecution case in the examination-in-chief, is resiling from certain things in the cross-examination, rather proves his evil, design and his money power which led the complainant to perjure the subsequent statement. However, law is well settled that even in the case of hostile witness, his testimony cannot be ignored altogether but the Court has to scrutinize his testimony and to find out the truth. Similar observations were made in case Karuppanna Thevar and others versus State of Tamil Naidu AIR 1976 Supreme Court 980. Similarly, the Apex Court in case Rabindra Kumar Dey versus State of Orissa AIR 1977 Supreme Court 170 has observed that mere by granting permission to the prosecution to cross-examine the witness Criminal Appeal No.847-SB of 2001 7 does not make it unreliable and his evidence cannot be excluded altogether. The crux of the aforesaid judgment is that the testimony of hostile witness cannot be discarded as whole but the Court should be slow to act upon to such evidence and should look upon for corroboration from the other evidence. In the instant case also, the testimony of Manjit Singh (PW6) is sufficient to establish the previous demand of Rs.1,000/- by the accused for correction of his service book. He has further stated that his service book which required rectification and despite the repeated visits, made by him, the same could not be corrected, therefore, he had acceded to the demand of illegal gratification made by the accused. The acceptance of gratification by the accused stands established from the testimony of Paramjit Singh, shadow witness (PW7). He has not minced the words that out of Rs.1,000/-, which were given by Manjit Singh (PW6) to the accused, recovery of Rs.500/- was effected in the presence of Mewa Singh (PW5). Mewa Singh was none-else but the Deputy Director of the office of accused. If he has also been declared hostile on certain aspects of the case that does not affect the substratum of the prosecution case.
As regards the testimony of complainant Manjit Singh (PW6), he reiterated the prosecution version in the examination-in-chief and on the same day i.e. 26.05.2000, he withstood the test of cross-examination when he was cross-examined by the defence counsel at length. However, when he was recalled for further cross-examination on 10.07.2000, then he resiled qua minor aspects of the case. As a matter of fact, regarding the questions about which he had already been cross-examined, again put to him and he gave twist to the answers and tried to support the accused.
As regards the testimony of Raj Kumar Kapoor (PW9), though Criminal Appeal No.847-SB of 2001 8 he supported the prosecution version regarding the payment of Rs.1,000/- to the accused and his hand-wash by the police but he remained silent qua the pocket wash of his shirt and he was declared hostile qua this aspect of the case.
As regards Mewa Singh (PW5), though he was not a party to the raid, he fully supported the prosecution case., He is also silent qua the pocket wash of the shirt of accused but this fact has been duly proved by Paramjit Singh (PW7), who has categorically stated that pocket of the shirt of accused, from which the money was recovered, was dipped in that water and the colour of the water changed to light pink which was put in nip and was duly sealed. The recovered notes, articles from the personal search of accused and shirt were taken into possession vide memo Ex.PC. His testimony stands corroborated by DSP Amrik Singh, so also the recovery memo Ex.PC vide which the nip containing the pocket wash was taken into possession and recovery memo Ex.PD vide which the shirt was taken into possession also support this fact. Mere fact that Mewa Singh (PW5) and Raj Kumar Kapoor (PW9) had skipped over to say about the pocket wash, cannot wipe of the statements of Paramjit Singh (PW7) and DSP Amrik Singh (PW8). Not only this, Manjit Singh has also stated about the pocket wash of the shirt of the accused. Mere fact that the witness resiled from his earlier statement stating that his previous statement was not correct, made under pressure, coercion, threat or confusion, no undue importance could be given to the same and benefit cannot be given to the accused. The Court should come on guard as to which of the statement is correct and the statement corroborated by other corroborated evidence can be used. Similar observations were made in case Hem Chander and others versus Criminal Appeal No.847-SB of 2001 9 State of Haryana 2007 (3) RCR 1034 (P&H) wherein it was observed as under:-
"No doubt, PW10 Dinesh, PW11 Vijay Pal and PW12 Sona Devi, after having been recalled for further cross-examination, resiled from their previous statements made in the Court, stating that their previous statements were made under police pressure. Reena was tutored. There was also threat to the deceased by the police and the death of Reena was accidental, but no undue importance can be given to such like statements and this puts Court to guard as to which of the statement is correct and the statement which is corroborated from other reliable evidence can be used against the accused."
Similarly, it was observed in case Ramappa Halappa Pujar and others versus State of Karnataka 2007 (3) RCR (Criminal) 102 that the very fact that villagers in a case of this nature had turned hostile would on the other hand, show that there was a ring of truth in the prosecution case. These observations of the Apex Court are based on the judgment delivered in case Mano versus State of Tamil Nadu, JT 2007 (5) SC 143.
Since the independent witness and the Investigating Officer have fully supported the prosecution case and the shadow witness as well as the official witnesses have also supported the recovery of tainted money from the possession of the accused, in that situation, even if the complainant resiles from his statement qua some aspect of the case then the Court is not helpless and powerless to appreciate the evidence on the record and mere hostility on certain parts by the witnesses by itself does not corrode validity of the prosecution version particularly when the witnesses, who have supported the prosecution version, withstood the incisive cross-examination and pointed out the accused as the perpetrators of the crime. It is often seen that the complainant in a corruption case, who is interested to bribe the Criminal Appeal No.847-SB of 2001 10 accused to solve his own purpose, keeping in view the consequences which the accused may face in future; may result into the dismissal from service and also in coercion in the jail and the fate of the children in future, would turn hostile, and it is the tendency on the part of the persons to play safe by retracting from the act which he did earlier. However, the Apex Court took the serious note of those persons who first put the law in motion, waste the auspicious time of the Investigating Agencies and the Courts and then for ulterior motives or otherwise withdraw from the case, and had to observe that the Courts in such situation are not powerless to keep in view the material available on record. Similar observations were made in case Jodhraj Singh versus State of Rajasthan 2007 (3) RCR (Criminal) 172, as under:-
"It is trite that only because a witness, for one reason or the other, has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. The Courts even in such a situation are not powerless.
Keeping in view the materials available on record, it is permissible for a Court of law to rely upon a part of the testimony of the witness who has been declared hostile."
The next contention, raised by the accused that the complainant allegedly paid a sum of Rs.1,000/- to the accused but only a sum of Rs.500/- were recovered from him, it is not explained by the prosecution as to where the other Rs.500/- had gone, therefore, the benefit should be extended to the accused. In this regard, it may be observed that though there is no denying a fact that out of payment of Rs.1,000/- by the complainant to the accused, only Rs.500/- were recovered. When the hands of the accused were dipped Criminal Appeal No.847-SB of 2001 11 into the water, the colour of the water turned pink and on tallying the numbers of the currency notes, recovered from the accused, with the memo, prepared by the Investigating Officer, the same were found to be the same as handed over by the Investigating Officer to the complainant, therefore, mere fact that the remaining amount were not recovered that may be in the knowledge of the accused where it was passed by him. However, Manjit Singh (PW6) has disclosed, during his statement, that a person had come to the accused and the accused had also gone to him, however, he has stated that the accused did not pay anything to him. Notwithstanding the fact that the currency notes of Rs.500/-, which were allegedly paid by Manjit Singh to the accused, were not recovered, yet the recovery of remaining tainted money from the accused is sufficient to discard the prosecution version that he was not handed over the tainted money by him. All the witnesses namely Paramjit Singh (PW5), Manjit Singh (PW6), DSP Amrik Singh (PW8) and Raj Kumar Kapoor (PW9) are consistent qua the fact that the money to the tune of Rs.1,000/- was agreed to be paid to the accused by Manjit Singh (PW6) for correction in the service book and they state that a sum of Rs.500/- were recovered from the front pocket of the shirt of the accused. When Manjit Singh (PW7) was recalled for further cross- examination, he has stated that some young man had come to the accused and the accused had gone out of the room and had given some money to that young man. He had seen while following the accused. Similarly, DSP Amrik Singh (PW8) has stated that regarding the remaining amount of Rs.500/-, Manjit Singh (PW6) had told him that some private person had come there and talked with the accused. He had taken some money from the accused and fled away. Thus, in these circumstances, no iota of doubt Criminal Appeal No.847-SB of 2001 12 remains in mind that Manjit Singh (PW6) had duly passed Rs.1,000/- as bribe money to the accused, out of which Rs.500/- were recovered. No reliance could be placed on the testimonies of Mewa Singh (PW5), Manjit Singh (PW6) and Raj Kumar Kapoor (PW9) as they have been declared hostile qua some aspects of the case. Having given my thoughtful consideration to this contention, I do not find myself persuaded by the same.
I also do not agree with the contention that the presumption under Section 20 of the Prevention of Corruption Act is not attracted in this case. Since it has come in the statements of the witnesses that Manjit Singh had to get the service book corrected through the accused. Though the accused had no authority to correct the service book yet he was to initial the same. He has further admitted during cross-examination that the officer does not make any changes without the initials of the incharge of the centre.
Admittedly, the accused was the incharge of the Centre and he had to forward the service book for correction, thus, certainly the accused had the motive to ask for illegal gratification from the accused.
As regards the previous demand, no independent corroboration was required when Manjit Singh had gone for correction of the service book. He had never thought that the accused would demand money from him, therefore, he was not supposed to take any witness with him. Since the demand of illegal gratification is a settlement in secrecy, therefore, need not insist upon independent corroboration of the demand of bribe money by the accused. Such crimes are committed in secrecy and normally bribes are not taken openly. Although, there are bold public servants, who do even that. Even the recovery of the bribe money from the accused, as proved by the prosecution on the record, also proves the earlier demand. Ample evidence Criminal Appeal No.847-SB of 2001 13 has been discussed in the foregoing paras that out of the bribe money, paid to the accused, tainted money to the tune of Rs.500/- was recovered from the pocket of the accused. The accused has not explained as to how these Rs.500/- came to his pocket. It is not even his case that the complainant thrusted the bribe money into his pocket. The pocket wash as well as the wash of the currency notes prove that this was the tainted money which was found in pocket of the accused. It has also come in evidence that the Investigating Officer had not touched the hands of the accused, rather he had asked him to raise his hands and he had given personal search to the witness. The investigating Officer intentionally in order to rule out any doubt did not touch the clothes of the accused and also accused was not asked to touch his clothes, rather he offered his own search to the witness in his presence. Thus, it would be suffice to hold that the recovery of the tainted money was effected from the pocket of the accused when he was sitting in the office. Thus, the presumption under Section 20 of the Prevention of Corruption Act could certainly be attracted in the present case. In Tarlok Chand Jain versus State of Delhi AIR 1977 (SC) 666, the Apex Court had the occasion to elaborate the provisions of Section 4(1) of the old Act which is now Section 20 of the Prevention of corruption Act, 1988 regarding the presumption and it observed as under:-
"The degree and the character of the burden of proof which Section 4(1) casts on an accused person, to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof, which under Section 101, Evidence Act, rests on the prosecution. While the mere plausibility of an explanation, given by the accused in his examination under Section 342 Cr.P.C., may not be enough, the burden on him to negate the presumption may stand Criminal Appeal No.847-SB of 2001 14 discharged if the effect of the material brought, on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption, by showing a mere preponderance of probability, in his favour; it is not necessary for him to establish his case, beyond a reasonable doubt."
It was also observed in case Hakam Singh versus State of Punjab 2008 (3) RCR 327. While controverting the arguments and in view of the fact that the arguments raised by learned counsel for the appellant, do not hold wider the case of the prosecution, will have to be fully established against the appellant, no leniency could be shown on the quantum of sentence.
Resultantly, finding no merit in the appeal, the same is dismissed.
(A.N.Jindal) Judge 11.10.2010 mamta-II